Issues: Group II with suspension (Standards of Conduct) and Performance Evaluation; Hearing Date: January 9-10, 2001; Decision Date: February 14, 2001; Agency: Department of Rehabilitative Services; AHO: Carl Wilson Schmidt, Esq.; Case Nos. 5098 and 5099

Department of Employment Dispute Resolution

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Rehabilitative Services Case Numbers 5098 and 5099

Hearing Date: January 9 and 10, 2001
Decision Issued: February 14, 2001

PROCEDURAL HISTORY

On September 28, 2000, Grievant was issued a Group II Written Notice of disciplinary action with a six workday suspension for:

Failure to follow supervisor's instruction and failure to comply with written policy and procedure. Upon review of your response to my due process memorandum of September 25, 2000, I have concluded that you presented no evidence to refute the documentation supporting the due process memorandum.

On October 23, 2000, Grievant timely filed a grievance to challenge the disciplinary action. The outcome of the Third Resolution Step was not satisfactory to the Grievant and she requested a hearing. The Agency Head qualified the grievance for a hearing.

Grievant received her performance evaluation on October 12, 2000. She filed a grievance on October 23, 2000 claiming the evaluation was arbitrary and capricious. The outcome of the Third Resolution Step was not satisfactory to the Grievant and she requested a hearing. The Agency Head qualified the grievance for a hearing.

On December 4, 2000, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. The Director of the Department of Employment Dispute Resolution issued a Compliance Ruling granting consolidation of Grievance Numbers 5098 and 5099. The Director stated,

This Department has long held that grievances may be consolidated by mutual agreement of the parties, or absent such an agreement, by this Department whenever the grievances challenge the same action or series of actions or arise out of the same facts. In this case, the parties have mutually agreed to the consolidation. Consolidation should avoid unnecessary duplication of testimony and evidence.

See Grievance Procedure Manual ("GPM") § 8.5.

On January 9 and 10, a hearing was held at the Agency's regional office. Several participants had visual and/or hearing impairments. Accommodations were made for these individuals by having the parties and witnesses speak at adequate levels and permitting additional time to review documents. GPM § 8.7. Upon motion of a party, the Hearing Officer found just cause to grant an extension of the 30 day time frame for issuing the decision because of the conflicting schedules of the parties and reduced number of available dates due to holidays. GPM § 5.1.

APPEARANCES

Grievant
Grievant's Attorney
Agency Representative
Manager
Internal Auditor

ISSUES

1. Whether Grievant should receive a Group II Written Notice of disciplinary action with a six workday suspension.

2. Whether Grievant's October 2000 evaluation was arbitrary or capricious.

BURDEN OF PROOF

With respect to the first issue, the burden of proof is on the Agency to show by a preponderance of the evidence that its disciplinary action against the Grievant was warranted and appropriate under the circumstances. GPM § 5.8.

With respect to the second issue, the burden of proof is on the Grievant to show by a preponderance of the evidence that her evaluation was arbitrary or capricious. GPM §§ 4.1(b)(3); 5.8.

A preponderance of the evidence is evidence which shows that what is sought to be proved is more probable than not. GPM § 9.

FINDINGS OF FACT

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

The Agency provides numerous services to individuals with disabilities. One program, the Personal Assistance Services (PAS) program, provides funding for individuals with disabilities to hire personal assistants to help them with activities of daily living. The program's objective is to enable individuals with disabilities (referred to as Consumers) to remain in their communities and function as independently as possible. The PAS program is consumer directed. This means the consumer is responsible for hiring, training, firing, and managing the paperwork for the program.

The Manager is responsible for supervising employees in the PAS program. She became a manager in August 1999. She supervises the Grievant who is one of two full time employees in the unit. There are four part-time employees also working in the unit. Before becoming a supervisor, she was a staff member in the unit for about a year and a half.

Grievant is an Administrative Coordinator. She began working for the Agency in 1994 as a P-14 and assumed her current full time position in October 1996.

Disciplinary Action

Grievant is responsible for sending out a starter package each time a new personal assistant begins working for a consumer. This package contains several forms and information materials including forms requesting background information, employment eligibility verification, an employment agreement between the consumer and personal assistant, and instructions for completing timesheets. Agency's Exhibit 6.

Personal Assistants submit timesheets to the Agency for processing and payment. Grievant is responsible for providing daily "oversight to the state-funded Personal Assistance Services program by reviewing timesheets for accuracy and approving for payment in compliance with established payroll procedures." Grievant's Exhibits 15 and 24.

The Consumer employed several different Personal Assistants during a four month period. He was trying to find a permanent employee and had to rely on several people to assist him until he selected that permanent employee. Grievant sent a starter package for each of the temporary Personal Assistants, but only the first of five Personal Assistants had a completed starter package returned to the Agency. Grievant contacted the Consumer several times regarding the missing packages and he told her the packages had been completed and mailed to the appropriate persons. Grievant continued to mail new starter packages but chose to authorize payment of the timesheets based on her conversations with the Consumer during which he confirmed that the Personal Assistants had worked the hours claimed. Grievant felt that if she refused to approve the timesheets, the Personal Assistants would stop working for the Consumer and the Consumer would suffer. Grievant realized that she would have to have the starter package information in the Agency's files at some point in time, but the long-standing procedure was to authorize payment to the Personal Assistant rather than risking having the Personal Assistants quit working.

Timesheets are preprinted forms covering work performed over a 14 day period. Timesheets have spaces where information should be written to identify the name of the personal assistant, name of the consumer, number of hours worked, dates hours are worked, signature of the personal assistant, and signature of the consumer. The signature of the consumer serves as an authorization for payment.

Timesheets are confusing¹ to a minor degree. For example, the form has signature blocks stating "Approved by Assistant:" and "Authorized by Employer:" The form does not identify the Consumer as the employer. Since payment is made by the Agency, it is possible the Personal Assistant and Consumer may believe the Agency is the employer and leave the employer signature block empty.² This confusion could also explain errors regarding which signature should appear in a particular signature block.

Grievant received 12 timesheets for the same Consumer during the period June 14, 2000 to September 20, 2000. Five different Personal Assistants rendered services to the Consumer. The Consumer has impairments preventing him from signing his full signature. He is able to make a circle and draw a line through the circle and uses that mark as his signature.

Problems with the timesheets are as follows:

Agency's Exhibit 2.

Grievant is required to comply with the Agency's Personal Assistant Services (PAS) Policy Manual. This manual provides:

Timesheets must be signed by the consumer and personal assistant confirming that the reported time worked is accurate. *** Timesheets may not be faxed or e-mailed, since signatures must be original.

Agency Exhibits 3 and 11.

The Agency publishes The Consumer's Guide listing questions and answers for consumers in the PAS program. In response to the question "What do I need to do to get paid?", the guide states, The completed timesheet includes your signature, the PA's signature, and dates/number of hours worked." Agency Exhibit 4. The Agency publishes a similar booklet for personal assistants entitled Personal Assistant's Guide. This guide addresses how the personal assistant is to be paid and it states:

The timesheet is your bill for services provided. When it is filled out with your signature, the Consumer's signature, dates and number of hours worked, it is mailed … to [the Agency] to be processed.

Agency's Exhibit 5.

The starter package sent to Personal Assistants contains instructions for completing timesheets. These instructions state "Timesheets must be approved, with original signatures, by Personal Assistant, authorized by employer, and dated. No faxed copies accepted." Agency's Exhibit 6.

Timesheets must be processed by the Grievant according to the PAS Payroll Procedures which were revised September 1999. One of the payroll procedures states:

Timesheet totals are checked to ensure accuracy and assurance against overages. Items to be checked include information in the top portion of the timesheet, signatures of consumer and PA, correct days in payroll period, and sum of daily hours. The hours are then tallied as a batch with adding machine tape and attached to each batch, each day.

Agency's Exhibit 2. Grievant attended the September 1999 meeting during which the revised procedures were distributed to employees and discussed by the Manager.

Following the events giving rise to this grievance, the Agency drafted and mailed a Signatory Authority Form to all consumers. The form is intended to address the situation where a consumer cannot sign his own name. The form states:

Effective November 1, 2000, consumers will be required to provide written documentation of signatory authority for any person other than the consumer to sign Personal Assistant Service Agreements, Consumer Notification forms, and time sheets. Written documentation must be witnessed by someone other than the consumer and the designated signator. *** Time sheets or other documentation requiring the consumer's signature that do not have an original signature from the consumer or the approved signator will not be processed.

Agency Exhibit 8.

The Manager gave the Grievant a Group II Written Notice, in part, because she had already received a Group I Written Notice several months earlier in June 2000. The Group I did not relate to the disciplinary issue under appeal in this grievance, according to the Manager.

Performance Evaluation

Grievant's Performance Plan, effective November 1, 1999, identifies five job elements and expectations describing the major functions and objectives of Grievant's position. Job elements and expectations are listed in their order of importance. The second job element and expectation states:

Generate accurate and timely payments to vendors. Provide timely payments to vendors by reviewing approved timesheets, assessments, reassessments, and other billings related to PAS ensuring that payments are in compliance with internal agency systems and state and federal procurement procedures such as the Virginia Procurement Act and Prompt Payment Act. Develop measures to help alleviate incidents of questionable timesheet, unusual circumstances or issues that may result in overpayments, consumer ineligibility or fraud.

Grievant's Exhibit 21.

On October 12, 2000, Grievant received an evaluation of expectations. For the second job element and expectation, Grievant received a "DOES NOT MEET EXPECTATION" rating. The Manager states:

[Grievant] has not consistently followed policies and procedures related to processing of timesheets and received a Group II Standards of Conduct Written Notification for processing potentially fraudulent timesheets. Her failure to follow procedures had significant impact on the PAS program and posed potential liability for the agency for allowing potentially fraudulent activity to occur.

Grievant received an Overall Performance Level rating of "FAIR BUT NEEDS IMPROVEMENT." The Manager comments:

During the past performance year [Grievant] has received one Group I Standards of Conduct Written Notification for failure to follow supervisor's instruction and unacceptable performance and one Group II Standards of Conduct Written Notification for failure to follow supervisor's instruction and failure to comply with written policy and procedure. She has made some improvements due to instruction provided in a Corrective Action Plan dated 6/6/00 but continues to require close supervision and guidance to ensure that her performance is acceptable and meets the requirements of her position.

Grievant's Exhibit 21.

Grievant's position description was revised effective February 28, 2000 which is after the effective date of her performance plan. Grievant's Exhibit 24.

CONCLUSIONS OF LAW

ISSUE 1 - DISCIPLINARY ACTION

Grievant received a Group II Written Notice alleging she failed to comply with written policy and procedure regarding the receipt of services for consumers to the PAS program and failed to follow her supervisor's direct instruction to adhere to those policies and procedures. Attachment dated September 28, 2000 to Written Notice.

Unacceptable Conduct Occurred

The Hearing Officer cannot identify any specific instruction given by the Manager to the Grievant other than a general instruction to comply with the Agency's written policies and procedures. In essence, Grievant received a Group II Written Notice for failure to follow the Agency's policies and procedures regarding the processing of timesheets.

Most of the timesheets admitted into evidence contain some form of error. Some of the errors are material and others are not. Immaterial errors include those where the Personal Assistant has signed in the block intended for the Consumer's signature. Given the confusing nature of the form, it is understandable that a Personal Assistant may not realize where to sign the form.

Several timesheets show the Consumer's signature was written by someone other than the Consumer. The Agency contends the Grievant should not have approved these timesheets at least without the Manager's prior approval. The Grievant replies that the Agency did not have a policy to address consumer signatures where the consumer was not able to sign his or her name. Grievant is correct. Prior to the events giving rise to this grievance, the Agency's written policies did not specifically address how to process timesheets for consumers who could not write their signatures. Only beginning in November 2000 did the Agency formalize a policy requiring consumers to designate someone to sign on their behalf if the consumers could not sign the timesheets. Thus, timesheets processed by the Grievant where the timesheet showed the Consumer's name signed by someone else are not incorrect for that reason.

Seven of the timesheets submitted do not contain the original signature of the Consumer or the signature of the Consumer drafted by someone on his behalf. The Agency's written policy states that timesheets are to have a consumer's signature. Agency Exhibits 2, 3, 5, and 11. When Grievant processed the timesheets without the Consumer's signature, she acted contrary to the Agency's policy and subjected herself to disciplinary action.

Of the five personal assistants, only one had returned a completed starter package to the Agency. This is not a material error because the Agency did not establish the existence of a policy which prohibited payment to a personal assistant until the package was returned to the Agency. Grievant's process of calling the Consumer to verify the time worked by Personal Assistants and then seeing that they were promptly paid is understandable in light of the severe disabilities of the population being served. She also testified she was acting in accordance with the Agency's long-standing informal policy.

Severity of Discipline Should be a Group I

The Agency contends the severity of discipline should be a Group II Written Notice with six workdays suspended because (1) Grievant failed to follow her supervisor's instructions, (2) Grievant failed to comply with established written policy, and (3) Grievant received a Group I Written Notice several months earlier for an unrelated matter.

Grievant's actions do not rise to the level of a Group II Written Notice for several reasons. First, the Agency did not prove that the Manager gave the Grievant a specific instruction other than the general instruction to comply with the Agency's written policies. Second, when deciding what level of discipline to choose, the Manager considered the Group I Written Notice she had given the Grievant several months earlier. The Manager testified that the Group I Written Notice was not related to the behavior underlying this grievance. Although the Standards of Conduct authorize an Agency to consider the absence of previous disciplinary action when deciding whether to mitigate disciplinary action, an Agency may not increase disciplinary action because of prior unrelated disciplinary action. Third, the message given to the Grievant regarding her level of discretion was inconsistent. For example, the Manager testified that anytime the Grievant had a problem with one of the timesheets, the Grievant was to refer the problem to the Manager for the Manager to resolve. Grievant's position description, however, states that she is to "Identify and resolve issues related to questionable timesheets, unusual circumstances or errors that may result in overpayment, consumer ineligibility or fraud." (Emphasis added). Grievant's Exhibit 24. The absence of the Consumer's original signature was not of concern to the Grievant because she had spoken with the Consumer and he indicated that the Personal Assistants worked the hours claimed on the timesheets. For those instances when contacting the Consumer did not resolve the issue to the Grievant's satisfaction, she referred the matter to her supervisor.

"Inadequate or unsatisfactory work performance" justifies giving an employee a Group I Written Notice. Department of Personnel and Training, Policies and Procedures Manual ("P&PM") § 1.60(V)(B)(1). Grievant approved timesheets that did not contain the Consumer's original signature or the Consumer's signature signed by someone acting on his behalf. Agency policy expressly requires a consumer's signature before a timesheet should be processed for payment. Grievant acted contrary to the Agency's policies. Her work performance was inadequate and unsatisfactory. Grievant should receive a Group I Written Notice.

ISSUE 2 - PERFORMANCE EVALUATION

Grievant alleges her performance evaluation was arbitrary and capricious. She seeks relief as follows:

· Reinstatement of all responsibilities of job description.
· A fair and equitable performance evaluation based on factual performance for the entire performance period of November 1999 through October 2000.

The Hearing Officer lacks the authority to order an agency to include certain responsibilities within an employee's job description. GPM § 5.9(b). State agencies have the exclusive right to manage their affairs and operations. Va. Code § 2.1-116.06(B). Accordingly, the Hearing Officer will not order the Agency to modify the Grievant's job description.

A Performance Evaluation is the "official determination of the degree to which an employee has met his or her performance expectations …." P&PM § 1.40(II)(F). Performance Evaluations should reflect performance levels for the entire performance cycle. P&PM § 1.40(V). A performance cycle begins on November 1 of a given year and ends on October 31 of the following year. P&PM § 1.40(II)(E).

The second most important job element and function of the Grievant's Performance Evaluation shows that the Grievant received a "DOES NOT MEET EXPECTATION" in part because the Grievant "received a Group II Standards of Conduct Written Notification for processing potentially fraudulent timesheets." The second job element and function was used to calculate Grievant's Overall Performance Level of "FAIR BUT NEEDS IMPROVEMENT". Receipt of a Group II Written Notice also is mentioned in the Overall Performance Comments section of the performance evaluation.

Arbitrary or capricious is defined as "Unreasonable action in disregard of the facts or without a determining principle." GPM § 9. The Agency could have written the evaluation in a manner which described Grievant's performance but did not refer to her receiving a Group II Written Notice. By specifically referencing a Group II Written Notice in Grievant's evaluation, the Agency indicates it has considered the level of discipline (as opposed to merely the underlying performance) when determining how well the Grievant performed her job. Since the Hearing Officer is reducing the Group II to a Group I offense, it is no longer appropriate for the Agency to evaluate the Grievant with the assumption that she received a Group II Written Notice. Grievant's evaluation, as it stands, disregards the fact that the Grievant should receive a Group I rather than a Group II Written Notice. Consequently, the evaluation is arbitrary or capricious.

When a performance evaluation is arbitrary or capricious, the Hearing Officer's authority is limited to ordering the agency to repeat the employee's evaluation. After the Agency considers the Grievant's performance for the entire performance cycle and without considering that the Grievant received a Group II, it may be the case that the Grievant's performance ratings remain the same. It may also be the case, that her performance ratings change. In any event, it is within the Agency's authority to assign the appropriate rating to each of Grievant's job expectations and assess her overall performance level.

DECISION

The Agency's issuance to the Grievant of a Group II Written Notice of disciplinary action with a six day suspension is reduced to a Group I. Because the normal disciplinary action for a Group I offense is issuance of a Written Notice, Grievant's suspension for six days is rescinded. GPM § 5.9(a)(2). P&PM § 1.60(D)(1)(a). The Agency is directed to provide the Grievant with back pay for the period of suspension less any interim earnings that the employee received during the period of suspension and credit for annual and sick leave that the employee did not otherwise accrue. GPM § 5.9(a)(3). P&PM § 1.60(IX)(B)(2).

Grievant's request for reinstatement of job responsibilities is denied.

The Agency is ordered to repeat its October 2000 evaluation of the Grievant in accordance with State policy.

APPEAL RIGHTS

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review - This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:

1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director's authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the decision is not in compliance. The Director's authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director's authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

A hearing officer's original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Judicial Review of Final Hearing Decision

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

Carl Wilson Schmidt, Esq
Hearing Officer

¹ The timesheets may be confusing to the individuals who must complete them. For example, consumers may be individuals who have impairments that affect their ability to read and understand the agreement. Personal assistants may be individuals working independently of any employer and who have varying levels of education and skills.
² The personal assistant and the consumer sign a Personal Assistant Service Agreement listing the services to be rendered. The agreement states, "This agreement shall be between (Employer) ________________ and (Personal Assistant) ________________. An agreement is signed at the beginning of the employment relationship, but the timesheets must be signed and submitted every 14 days.